STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MARK GROSSKOPF , Applicant

NECO HAMMOND INC, Employer

FIRE & CASUALTY INS OF CONNECTICUT, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95014199


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: March 31, 1998
grossma.wsd : 101 : 8   ND 10.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant filed an application for hearing alleging an injury to both knees while moving a file cabinet. Before the hearing on the application, however, the parties entered into a "full and final compromise." At issue is whether the compromise bars the applicant's subsequent claims related to his right knee.

The compromise agreement starts by asserting that the parties were in dispute as to whether the applicant was entitled to workers compensation benefits "including, but not limited to temporary total disability, temporary partial disability, permanent partial disability, vocational rehabilitation, loss of earning capacity, permanent total disability, and past and present medical expenses." The compromise next states the applicant "claims to have sustained a left knee injury arising out of employment" and that he "claims entitlement to compensation for 5% permanent partial disability to the left knee, a period of temporary total disability and medical expenses related to the left knee." The compromise goes on to say the respondent denied the applicant was injured to the extent claimed, and specifically denied he sustained five percent permanent partial disability to the left knee. The compromise then recites that "to settle the issues in this disputed claim," the parties agreed to the lump sum payment of $7,100 paid for medical expense and attorney fee.

The compromise goes on to state that upon payment of the $7,100, the respondent would stand relieved for liability for various types of benefits (including temporary total disability, temporary partial disability, loss of earning capacity, permanent total disability) "and any al [sic] all other liability both present and future, under Chapter 102, Stats., ... for any disability alleged to have arisen out of the injury described herein." After a discussion of medical expenses and statutorily- required discussion of the waived right to a hearing, the compromise agreement states that medical records attached to the compromise are made a part of the compromise "as though fully set forth herein." The compromise concludes by stating the $7,100 payment shall "be in full and final compromise of any and all claims against the respondent employer or its insurer asserted or unasserted, known or unknown, past present or future."

As noted above, the applicant now claims right knee disability. The issue before the commission is whether the compromise agreement, which itself mentions only a left knee injury and left knee disability, compromised the right knee injury and so bars claims for disability and medical expenses related to the right knee. The ALJ found the compromise agreement did not bar the applicant's right knee claim. The commission agrees.

The text of the compromise agreement itself says nothing about the right knee injury or claims for disability to the right knee. On page 3, the compromise agreement states the payment of $7,100 relieves the employer and insurer "from any and all liability ... for any disability alleged to have arisen out of the injury described herein." The only injury described within the four corners of the compromise agreement is the left knee injury.

The respondent points out that medical records were attached to the compromise agreement, and incorporated into the compromise agreement as if made a part of the compromise. These records do refer to right knee problems. However, the occasional references to right knee problems incorporated in the medical documents may not be read to broaden the meaning of "injury described herein" when the compromise agreement itself refers only to claims for left knee disability and for medical expenses to treat the left knee injury.

The respondent also points out that the compromise agreement states the disputed issue was whether the applicant was entitled to benefits "including, but not limited" to the list of benefits set out on pages 1 and 2 of the compromise. The respondent asserts that the compromise agreement contemplated claims not specifically listed in the agreement, and was thus intended to include claims arising from the right knee injury. However, the "including, but not limited to" language refers only to the types of benefits (TTD, PPD, vocational rehabilitation, etc.) available to the applicant for the injury described in the compromise agreement. The "including, but not limited to" language should not be construed to refer to additional undescribed injuries.

The respondent states that all the litigation documents pertain to both knees, thus indicating that the right knee claim was intended to be resolved by the compromise. However, if the intent of the parties can be determined with reasonable certainty from the contract itself, resort to extrinsic evidence for construction of the contract is inappropriate. Patti v. Western Machine Co., 72 Wis. 2d 348, 351 (1976). Stated another way, when a contract is clear and unambiguous, it should be construed as it stands without resort to extrinsic evidence to determine the intent of the parties. In re Marriage of Rosplock, case no. 96-3522 (Wis. Ct. App., February 4, 1988) (publication recommended). Courts should not use extrinsic evidence in an attempt to rewrite a contract to relieve one party from disadvantageous terms. Id.

The commission believes the intent of the parties in this case is clear. The compromise agreement itself carefully describes only a left knee injury, then relieves the respondent from the liability for that injury as described. True, the compromise also contains very general language at the end which purports to relieve the insurer from any and all claims, known or unknown, past, present or future. However, that language, too, must be tied back to claims from the single described injury to the left knee. Otherwise, if the reference to "future or unknown claims" included "future or unknown injuries," it would be too broad to enforce.

It could be argued that the incorporation of the medical records suggests that the injury described in the compromise agreement includes the right knee complaints. The attachment of the medical records could thus be viewed as raising an ambiguity, permitting the consideration of extrinsic evidence. However, finding the contract ambiguous on this basis runs contrary to the point in Rosplock that courts should not invent ambiguities in contracts as an excuse to get into extrinsic evidence like the hearing application.

Even if the contract were made ambiguous by incorporation of the medical records, though, the hearing application and other litigation documents are not the only bit of extrinsic evidence in this case. Indeed, the file contains a letter from the insurer itself, stating that the compromise did not mention the right knee because there were no disputed issues on the right knee, and that if the applicant has claims on the right knee he should file a hearing application rather than seek relief from the compromise. Letter of Nyenhuis to WC Division dated November 11, 1996. The only reasonable conclusion from Nyenhuis's letter is that the insurer did not believe the right knee was covered in the compromise. Indeed, in the underlying compromise review application (1) that triggered Ms. Nyenhuis's letter, the applicant expresses the same view that the compromise dealt only with claims for the left knee.

cc: ATTORNEY LESLIE EVEN
QUARTARO CASTAGNA EVEN & CAFARO


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Footnotes:

(1)( Back ) This document was filed by the applicant, pro se.